Kerala High Court · 2012

C.T. RAVIKUMAR, J.===========================CRL. R.P. NO. 832/2012===========================Dated this the 6th day of July 2012O R D E RThis revision petition is directed against the order dated14-02-2012 in Criminal M.P.No. 1564 of 2012 of the Court of theJudicial First Class Magistrate, Chalakudy dismissing the same. Thepetitioner filed the said protest compliant under Section 190 (1) (a) ofthe Code of Criminal Procedure alleging commission of offencespunishable under Sections 420, 468 r/w Section 34 of the Indian PenalCode against the respondents 1 to 3 herein and praying for a directionto conduct further investigation under Section 173 (8) of the Cr.P.C. asthe police filed a refer report considering the allegations of the revisionpetitioner/complainant as 'mistake of fact' pursuant to the investigationon the petition referred earlier under Section 156 (3) Cr.P.C. forinvestigation and report. CRL. R.P. NO. 832/2012 #2#2. The case of the petitioner is that respondents 1 to 3(accused Nos. 1 to 3 respectively) are known to him and one day whilehe was sitting in his jewellery the second accused came to him with theinformation that the 1st accused was arranging job visa to persons to goabroad on payment of an amount of Rs. 1,00,000/-. It was also informedto contact him in case there were interested persons available with thepetitioner. Based on the information the complainant contacted the 1staccused and they entered into an agreement to arrange 10 vizas for tenpersons for an amount of Rs.1,00,000/- each. Accordingly, the revisionpetitioner/complainant collected Rs. 1,00,000/- each from 10 personsand handed over an amount of Rs. 9,50,000/- to the 1st accused on27-2-2010 at his residence. The balance amount was agreed to be paidupon handing over the air tickets for the persons concerned. Thecomplainant further alleged that the 1st accused failed to arrange the vizawithin a period of one month as promised by him. When he demandedback the amount paid by him, the 1st accused issued a cheque to the tuneof Rs. 9,50,000/-. The said cheque was dishonoured when presented for CRL. R.P. NO. 832/2012 #3#encashment on account of insufficiency of funds and thereupon he hadfiled a complaint under Section 138 of the Negotiable Instruments Act.It is alleged that accused Nos. 1 to 3 shared the common intention tocheat the complainant and also committed forgery of the visa. When thecomplaint was forwarded for investigation under Section 156 (3) thematter was investigated after registering a crime. The investigatingofficer thereafter filed a final report before the learned Magistrate whichin this case is a refer report. It is in the said circumstances that theaforesaid protest petition alleging commission of offences punishableunder Section 420, 468 r/w. Section 34 IPC and also with a prayer toconduct further investigation. 3. In Meenakumari v. State of Bihar Reported in (2006) 4SCC 359 the Hon'ble Apex Court held that the Magistrate could ignorethe conclusion arrived at by the investigating officer and independentlyapply his mind to the facts emerging from the investigation and takecognizance of the case, if he thinks fit, exercising his power under CRL. R.P. NO. 832/2012 #4#Section 190 (1) (b) Cr.P.C. In the decision reported in 2012 (3) KLTS.N. 8 (Case No. 10) SC the Hon'ble Apex Court held that beforerejecting a prayer made in a closure report it is appropriate, though notimperative, for the Magistrate to narrate, why he had taken a decisiondifferent from the one sought for. In view of the said decisions of theHon'ble Apex Court there can be no doubt that the Magistrate is notbound the refer report. In a fit case in which the court finds that therecords produced by the prosecution do not reveal any offence for wantof effective investigation the proper course would be to order furtherinvestigation. In the case on hand, obviously, the learned Magistratethought it only fit and proper to accept the refer report and further that inthe circumstances obtained in the case no purpose would be served bydirecting a further investigation. The court found that the case wasreferred by the police mainly on two grounds. Firstly, the investigatingofficer stated that except the names of the so called persons whoentrusted money with the complainant no further details were availableto contact the said persons to get their statement regarding the alleged CRL. R.P. NO. 832/2012 #5#transaction between the complainant and the accused in this case.Secondly, going by the report of the investigating officer the so calledwitness who allegedly witnessed the handing over of an amount ofRs. 9,50,000/- by the complainant to the first accused on beingquestioned revealed that he was not present at the time of occurrence andhe had only signed an agreement subsequently at the shop of thecomplainant and he did not witness the first accused signing the saidagreement and the complainant handing over Rs. 9,50,000/-. The learnedMagistrate has also satisfied on perusal of the complaint that there are noaverments regarding the aforesaid two grounds in it. The order of thelearned Magistrate cannot, in the circumstances, be interfered with as it isnot suffering from any error, illegality and it also cannot be said to beglaringly unreasonable. In the circumstances, I do not find any reason atall to interfere with the impugned order passed by the learned Magistrateupon perusing the final report. The impugned order would reveal thatthe petition submitted by the petitioner was rejected by the learnedMagistrate upon valid reasons. The facts adverted herein before would CRL. R.P. NO. 832/2012 #6#reveal that the learned Magistrate came to the conclusion that it is not afit case to order further investigation. Above all, it is evident from theorder itself that its dismissal would not preclude the persons alleged tohave been cheated to proceed against the accused upon better evidence.This revision petition is liable to be fail and accordingly, it is dismissed. Sd/- C.T. RAVIKUMAR (JUDGE)/True Copy/kvr/P.A. to Judge